Archive for January, 2017


On December 20, 2016, the First District Court of Appeal ordered published its decision in The Committee for Re-Evaluation of the T-Line Loop v. San Francisco Municipal Transportation Agency (2016)  6 Cal.App.5th 1237. The court upheld the San Francisco Municipal Transportation Agency’s (Muni’s) determination that a supplemental EIR was not required for the final “loop” of a light-rail project that Muni’s predecessor agency had approved and certified an EIR for in the late 1990s. In so holding, the court rejected the petitioners’ argument that the loop constituted was a “new” project under CEQA. The decision is the first to rely on the California Supreme Court’s recent opinion in Friends of the College of San Mateo Gardens v. San Mateo Community College District (2016) 1 Cal.5th 937 (San Mateo), which established that the deferential substantial evidence standard of review applies to an agency’s decision that a proposal is part of the same project reviewed in an earlier EIR, rather than a new project.

Background

In the 1990s, Muni’s predecessor agency proposed to connect the southeastern part of San Francisco to the rest of the city via the Third Street Light Rail Project, which would link the Visitacion Valley/Little Hollywood and Bayview Hunters Point neighborhoods with Chinatown, Downtown, and South of Market. As relevant to the case, “Segment 4” of the project’s initial operating segment runs along Third Street from Kirkwood Avenue north to 16th Street, and includes a short-turn “Loop” from Third Street following 18th, Illinois, and 19th Streets. This Loop would allow the extension of an existing line to serve Mission Bay and provide an area for two-car trains to lay over. The San Francisco Planning Commission certified a Final EIR for the project in 1998.

By 2003, construction of the project’s initial operating segment was completed, including the Segment 4 along Third Street and much of the Loop. Due to budget constraints, however, the Loop was not fully completed.

In 2013, FTA awarded Muni a grant to fund completion of the Loop. In connection with applying for the grant, in 2012 Muni prepared a memorandum to the San Francisco Planning Department, seeking the department’s concurrence that, under Public Resources Code section 21166, and its implementing CEQA Guidelines sections 15162 and 15163, a supplemental or subsequent EIR was not required for the Loop to be completed. In the memorandum, Muni stated that the environmental impacts of the Loop had been analyzed in the certified Final EIR; there had been no changes to the Loop’s design since the Final EIR was certified; part of the Loop had been built; and, although there were new developments near the Loop, the Final EIR’s analysis assumed those developments would be built. The Planning Department responded that it agreed with Muni that no further environmental evaluation was required.

The project design for the Loop was then finalized. In August 2014, Muni prepared another memorandum to the Planning Department about the Loop, noting that it had been two years since the department had concluded that no further environmental review was required, and since then, the City had approved the stadium for the Golden State Warriors basketball team on the northeast corner of 3rd and 16th Street. The memorandum explained that the arena would likely increase demand for transit, and that the Loop would help meet this demand, and also allow light-rail vehicles to be stored near the arena for quick response to post-event surges in transit demand. The Planning Department responded that it agreed that no further environmental review was required.

In September 2014, the Muni Board of Directors adopted a resolution authorizing the execution of a construction contract for the Loop. The resolution explained that the Loop had been analyzed in the Final EIR certified by the City in 1998 and that the Planning Department had determined that no further environmental review was required.

The petitioners filed a petition for writ of mandate alleging Muni violated CEQA in approving the Loop without first preparing a new EIR. The trial court denied the petition and the petitioners appealed.

The Court of Appeal’s Decision

Under CEQA, an agency must prepare an EIR in the first instance if there is substantial evidence supporting a fair argument that a proposed project may have a significant effect on the environment. This “fair argument” standard creates a low threshold for requiring an EIR. In contrast, once an EIR has been certified for a project, CEQA prohibits an agency from requiring further EIRs, unless: (a) substantial changes are proposed in the project which will require major revisions in the EIR; (b) substantial changes with respect to the circumstances under which the project is being undertaken will require major revisions in the EIR; or (c) new information, which was not known and could not have been known at the time the EIR was certified, becomes available. (Pub. Resources Code, § 21166.)

As the Court of Appeal explained, until recently, the law was unsettled as to the standard of review that applied to an agency’s determination that an activity is a “new” project as opposed to a project that had previously been considered in an EIR. In San Mateo, however, the Supreme Court held that the substantial evidence standard applied. As stated by the high court, “the question ‘whether an initial environmental document remains relevant … is a predominantly factual question,” so the court must defer to the agency’s determination on that issue if it is supported by substantial evidence in the record.

Turning to the record before it, the Court of Appeal concluded that substantial evidence supports Muni’s conclusion that the Loop is not a new project, but part of the previously approved project analyzed in the 1998 certified EIR. The court also held substantial evidence supported Muni’s implicit decision that the Final EIR retains informational value with respect to the Loop. The court explained that the Final EIR described and analyzed the Loop in connection with the project’s initial operating segment. Among other things, the Final EIR analyzed the effects of the initial operating segment on parking and pedestrians and the interrelationship between projected growth in population and employment in the southeastern part of San Francisco. In view of this evidence, the court held Muni did not abuse its discretion in treating the Loop as part of the earlier-approved light-rail project.

The petitioners argued that even assuming that the Final EIR did analyze the Loop as part of the project, the Final EIR did not provide sufficient detail about the Loop. The court rejected this argument, holding that it amounted to an untimely challenge to the Final EIR. The court explained that under Public Resources Code Section 21167.2, an EIR is conclusively presumed valid unless a lawsuit has been timely brought to contest its validity, which no one contended to have happened in this case.

The court further held that substantial evidence supported Muni’s conclusion that no subsequent or supplemental EIR was required for the Loop under Public Resources Code section 21166. Evidence supporting this conclusion included the 2012 and 2014 statements from the San Francisco Planning Department that no further environmental review was required as well as the memoranda prepared by Muni to which those statements respond. In addition, the record included a 2013 environmental assessment (EA) prepared by FTA under NEPA, which concluded the Loop would not result in any adverse environmental effects. The EA provided further substantial evidence in support of Muni’s conclusion that a supplemental EIR was not required.

The petitioners claimed that the Loop had changed since the Final EIR was certified, but the only change they cited was the fact that Muni deferred construction of the Loop, whereas the rest of Segment 4 was built in 2003. The court rejected this argument, noting that the petitioners had not cited any authority holding that mere delay in completing construction constitutes a substantial change in a project under CEQA.

Lastly, the court rejected the petitioners’ argument that Muni abused its discretion by failing to follow procedures in determining that no further CEQA analysis was requited. According to the petitioners, Muni based its decision that no further environmental review was necessary solely on “an unsupported staff conclusion.” But the court noted that this was not a procedural flaw, as CEQA does not set forth any procedure that an agency must follow in deciding whether a new EIR is required. And, in any event, the record shows that Muni relied on more than just the staff report.